9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (11) TMI 455 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - threshold limit of debt involved - time limitation - HELD THAT - On perusal of the email, this Bench observed and have the clear picture in mind that the Corporate Debtor acknowledges the amount due which is to be repaid by the Corporate Debtor to the Operational Creditor. Thus, it clearly shows that there is a clear debt and default by the Corporate Debtor in repaying the outstanding amount with respect to pending invoices to the Operational Creditor. On perusal of the records, it is found that the Petition was filed on 21.10.2021 and the Corporate Debtor acknowledges his liability on 23.07.2021, thus Petition is filed well within the prescribed period of Limitation i.e. 3 years as provided under Section 18 of Limitation Act, 1963 - After perusal of the material on record, this Bench is of considered view that the there is no reason to deny the Petition under section 9 filed by the Operational Creditor to initiate the CIRP against the Corporate Debtor. On perusal of the documents submitted by the Applicant, it is clear that Operational debt amounting to more than Rs.1,00,00,000/- is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in payment of debt amount. Therefore, there are no objection on record against the application filed for initiation of CIRP against the corporate debtor. Hence, the Application filed by the Operational Creditor is liable to be admitted - the application is complete and has been filed under the proper form. The debt amount is more than Rupees One Crore and default of the Corporate Debtor has been established. Petition admitted - moratorium declared.
Issues Involved:
1. Jurisdiction of the Tribunal. 2. Existence of Debt and Default. 3. Pre-existing Dispute. 4. Admission of Debt by Corporate Debtor. 5. Maintainability of the Petition. 6. Appointment of Interim Resolution Professional (IRP). 7. Moratorium under Section 14 of IBC. Issue-wise Analysis: 1. Jurisdiction of the Tribunal: The Tribunal established its jurisdiction based on the registered office of the Corporate Debtor being located in Mumbai. The Operational Creditor argued that the Tribunal has territorial jurisdiction over insolvency resolution and liquidation of corporate persons, irrespective of any agreement between the parties, as supported by precedents from the Hon'ble NCLAT. 2. Existence of Debt and Default: The Operational Creditor supplied goods to the Corporate Debtor and raised invoices from 01.02.2020 to 29.02.2020, which remained unpaid. The total claimed default was Rs.2,20,42,190/-. The Corporate Debtor acknowledged an outstanding amount of Rs.2,07,11,209/- in a letter to Citi Commercial Bank dated 23.07.2021. The Tribunal found that the debt amount exceeded Rs.1,00,00,000/- and default was established. 3. Pre-existing Dispute: The Corporate Debtor claimed a pre-existing dispute regarding the quality of materials supplied, citing letters dated 24.06.2020, 20.07.2020, 23.07.2020, 18.08.2020, and 17.09.2020. However, the Tribunal found these disputes to be raised as an afterthought, noting that the Corporate Debtor continued placing orders and making payments without raising quality issues. The Tribunal referred to the Supreme Court's ruling in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd., which held that disputes must be genuine and not spurious or illusory. 4. Admission of Debt by Corporate Debtor: The Tribunal observed that the Corporate Debtor's letter to Citi Commercial Bank on 23.07.2021 acknowledged the outstanding invoices and promised to clear them. Additionally, an email dated 13.05.2021 from the Corporate Debtor confirmed the outstanding amount and agreed to make extra payments towards old outstanding dues. These admissions were considered clear evidence of debt and default. 5. Maintainability of the Petition: The Corporate Debtor argued that the petition was not maintainable due to jurisdictional issues and pre-existing disputes. The Tribunal dismissed these contentions, finding the petition maintainable as it was filed within the limitation period of three years from the acknowledgment of debt on 23.07.2021. 6. Appointment of Interim Resolution Professional (IRP): The Tribunal appointed Mr. Rakesh Kumar Tulsyan as the Interim Resolution Professional (IRP) to carry out functions as per the IBC. The Operational Creditor was directed to deposit Rs.5,00,000/- with the IRP for expenses related to issuing public notices and inviting claims. 7. Moratorium under Section 14 of IBC: The Tribunal ordered a moratorium under Section 14 of the IBC, which included: - Suspension of suits or proceedings against the Corporate Debtor. - Prohibition on transferring or disposing of the Corporate Debtor's assets. - Suspension of actions to foreclose or enforce security interests. - Continuation of essential goods or services to the Corporate Debtor. The moratorium was to remain in effect until the completion of the CIRP or approval of a resolution plan or liquidation order. Conclusion: The Tribunal admitted the petition filed by the Operational Creditor to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The Tribunal found the debt and default to be established, dismissed the claims of pre-existing disputes, and appointed an IRP. A moratorium was declared as per Section 14 of the IBC.
|
